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State v. Wagner

Court of Appeals of Ohio, Fourth District, Adams

November 9, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
TARA WAGNER, Defendant-Appellant.

         CRIMINAL APPEAL FROM COMMON PLEAS COURT

          Stephen P. Hardwick, Columbus, Ohio, for appellant.

          David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge

         {¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. Tara Wagner, defendant below and appellant herein, assigns one error for review:

"THE RECORD CLEARLY AND CONVINCINGLY DOES NOT SUPPORT THE TRIAL COURT'S DECISION TO PUNISH MS. WAGNER FOR THE HARM CAUSED BY DRUGS SHE WAS NOT CONVICTED OF SELLING. R.C. 2929.01(DD), 2929.12, 2953.08(G)(2); INDICTMENT (MARCH 31, 2016); PLEA OF GUILTY (Aug. 18, 2016); T.P. 12-3 (AUG. 14, 2016); T.P. 21-24 (SEPT. 21, 2016)."

         {¶ 2} On March 31, 2016, the Adams County Grand Jury returned an indictment that charged appellant with (1) two counts of trafficking in drugs to a minor in violation of R.C. 2925.03(A)(1), with a specification that the appellant committed the offense in the vicinity of a juvenile, both fourth-degree felonies, and (2) two counts of corrupting another with drugs in violation of R.C. 2925.02(A)(4), both second-degree felonies.

         {¶ 3} At her change of plea hearing, appellant pled guilty to one count of trafficking in drugs with specification, and one count of corrupting another with drugs. In exchange for her plea, the state dismissed counts two and four. At the hearing, appellant stated to the trial court that on February 14, 2016, she met a juvenile, who was a friend of her stepdaughter, at a convenience store and sold one Suboxone pill to the juvenile in the presence of her minor stepdaughter.

         {¶ 4} At appellant's sentencing hearing, the trial court reviewed appellant's offenses and analyzed the various sentencing factors. The court then painted a picture of a larger drug problem at the local Children's Home. The transcript reveals that the trial judge spoke at length regarding the sale of drugs to minors who reside at the Adams County Children's Home. The court noted its frustration and disbelief with the egregious nature of selling drugs to a child who already occupies such a difficult position in life. The court also listed some of the more heinous violent crimes that it had seen in Adams County and stated that this particular crime is actually worse. At the conclusion of the hearing, the court sentenced appellant to serve eighteen months of in prison on count 1 (the trafficking charge) and seven years on count two (the corruption charge), with the sentences to be served concurrently and with credit for 125 days previously served. In addition, the court imposed an $800 fine and suspended appellant's driver's privileges for three years, effective 2/1/23 or upon her release from incarceration. Also, the court waived the minimum mandatory fine in count 3 as a result of a timely filed affidavit of indigency by defense counsel. This appeal followed.

         {¶ 5} The standard of review for felony sentences is found in R.C. 2953.08(G): "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(c) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law." Recently, the Supreme Court of Ohio held that an appellate court may vacate or modify any sentence if the court finds, by clear and convincing evidence, that the record does not support the sentence. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. The Marcum court defined "clear and convincing" as "that measure or degree of proof which is more than a mere 'preponderance of the evidence, ' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Id., citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Thus, we must determine whether, by clear and convincing evidence, whether the sentence in the case at bar is contrary to law.

         {¶ 6} Appellant asserts that her sentence is contrary to law because although her offense involved the sale of one pill, the trial court instead punished her for harm caused by drugs for which she was not convicted of selling. We turn to the sentencing transcript for the court's recitation of the facts and analysis of the relevant sentencing factors. The court noted that on February 14, 2016, the director of children's services notified the West Union Police Chief about suspected drug activity in the Children's Home. The director of the home had taken some of the children to the probation department to be drug tested. After interviewing the children who had tested positive for Buprenorphine, which is commonly known as Suboxone, the Chief learned that a juvenile sold or gave the Suboxone to the other juveniles. During the interview, the juvenile stated that he received the Suboxone from appellant's stepdaughter, and that he gave it to another juvenile who would then give it away or sell it. Appellant was identified as the person who provided the Suboxone to the selling juvenile. Thus, the person that appellant corrupted with drugs is the juvenile who received, or gave away, the Suboxone. The specification to the trafficking charge involved the fact that appellant also trafficked in the vicinity of a minor, her stepdaughter.

         {¶ 7} The trial court also referenced the multiple hearings that it held that involved the children's home, and discussed one young woman who had planned to join the Marine Corps, but cannot now do so because she has a drug problem due to Suboxone. In addition, the court identified another young man who had turned 18 and was in jail facing a felony, and "the only reason he's in jail is because of the inception of this case. The only reason." The court also referenced other juvenile cases as well.

         {¶ 8} In addition, the trial court referenced two sales, although appellant pled guilty to and was convicted of one, and asked appellant if she was aware of the multiple effects of her actions: "You ought to see the wake of your boat. You ought to see the carnage that we're skiing through right now. You say it never happened before in your life. It never happened before, ma'am, in the history of Adams County, Ohio. There has never been one person since the founding of this county that ever imagined or ever effectuated the sale of drugs to kids, that the reason they're out there is because their parents have died or abandoned them, the majority of them because of drugs. And you're going to sell drugs to them." The court then segued into talking about a recent case involving a stranger abduction, rape and kidnaping in an Amish area of Adams County.

         {¶ 9} The trial court did acknowledge appellant's de minimis criminal record, and also inquired about her disability. Appellant informed the court that she had an anxiety disorder from a 2011 rape. She also shared that: "When my husband had a stroke, he actually had three strokes, we lost our home, we lost our car, we lost everything. ...


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